41 posts from October 2016

10/31/2016

Recently, a three judge panel on the D.C. Circuit held in PHH Corp. v. Consumer Financial Protection Bureau, that the for cause removal provision for the director of the Consumer Financial Protection Bureau was unconstitutional. Rather than striking down the entire statute, the court struck the for cause removal provision, leaving the director subject to removal at the pleasure of the President.

The Bureau is an example of the newest philosophy in administrative governance, which the Democrats have pursued in Sarbanes Oxley, Obamacare, and the Dodd-Frank banking act. The idea is to maximize the independence of administrative agencies and to enhance their power. In terms of maximizing the independence of the Bureau, the Bureau does not answer to the President (that is what the for cause removal provision means) and it is funded through the Federal Reserve, so that the Congress cannot use its appropriations power to control the agency. The power of the agency is enhanced, because it is controlled by a single director rather than a bipartisan commission as virtually all independent agencies are. Needless to say, this new philosophy of governance is extremely problematic.

The D.C. Circuit decision by Judge Kavanaugh has been subject to some criticism, but I approve of it on a variety of grounds. In this post, let me discuss the question from the perspective of originalism and precedent. In my view, the Constitution’s original meaning, through the Executive Power Vesting Clause, grants the President authority to remove or direct principal executive officers (I leave aside for now whether it is the power to remove or direct or both).

The basic argument here is a little different for direction and removal. For removal, the argument is that Executive Power Vesting Clause gives the President the traditional authority of executives that was not taken away by the Constitution. Since executives traditionally had the authority to remove principal officers and since the Constitution is otherwise silent on removal, the President enjoys that authority.

Of course, Supreme Court precedent has allowed removal restrictions on executive officials since at least Humphrey’s Executor. But as Judge Kavanaugh notes, no significant Supreme Court precedents or long standing practice allows removal restrictions on single headed agencies. Instead, these restrictions have been limited to multi-member commissions. Thus, there is no clear precedent on point.

One could, of course, extend Humphrey’s Executor and other precedents to single headed agencies, but the question is whether the courts are required to do so. It is by no means clear that they are. In Free Enterprise Fund v. Public Company Accounting Oversight Board, Chief Justice Robert’s decision largely followed the type of analysis applied by the D.C. Circuit. Roberts described the removal authority of the President as flowing from the Constitution. He described the permissibility of removal restrictions as coming from precedent. Since the removal restriction in that case was not covered by precedent, the opinion followed the original meaning.

Moreover, the D.C. Circuit’s attempt to distinguish the precedent makes sense. The court noted that the separation of powers operates to place checks on agency officials. Those could be provided by the President (when there were no removal restrictions) or by the other commission members (when there were removal restrictions). Thus, not extending the precedent to a single-headed agency made sense.

The check on a commission would be more effective if the commissioners were required to be bipartisan, as most commissions seem to be. It does not appear that the D.C. Circuit imposed this requirement, which would have made sense in terms of its reasoning. It may be that the precedent and practice upon which the court relied only supported a commission rather than a bipartisan commission.

The Supreme Court invokes Article II’s Take Care Clause often and for many purposes. First, the Court has relied on the President’s duty to “take Care that the Laws be faithfully executed” to establish the power to remove officers who do not follow the President’s directives. Second, the Court has used the Take Care Clause to define the limits of Article III standing, holding that the constitutional requirements of injury, causation, and redressability help to ensure that the President rather than the federal judiciary retains primary responsibility for the legality of executive decisions. Third, the Court has treated the Take Care Clause as the source of the President’s prosecutorial discretion — a power that may give the President room to reshape the effective reach of laws enacted by Congress. Fourth, the Court has identified the Take Care Clause as the direct source of the President’s constitutional obligation to respect legislative supremacy. Indeed, the Court has read the clause as a negation of any presidential power to dispense with or suspend federal law. Fifth, the Court has read the Take Care Clause as the source of inherent presidential authority to take acts necessary to protect the operations of the federal government, even in cases in which no statute provides explicit authority to do so.

The Court’s reliance on the Take Care Clause to serve so many ends simultaneously is striking. The Court’s decisions rely heavily on the Take Care Clause but almost never interpret it, at least not in the conventional way one thinks of the Court’s interpreting the Constitution. With rare exception, the Court has not parsed the text of the clause or examined its historical provenance (except insofar as the clause was invoked in the First Congress to justify the removal power). In addition, at least some of the ways in which the Court has used the clause are in tension with one another. The instantiation of strong prosecutorial discretion, for example, may run into the scruple against dispensation that the Court also ascribes to the clause. Such tensions, moreover, require line-drawing that raises unacknowledged questions about the availability of judicially manageable standards. Without attempting to resolve the meaning of the Take Care Clause, this Article examines its many uses in the case law and asks whether the Court has legitimately treated the clause as a proxy a freestanding separation-of-powers principles.

In my view the clause serves, at most, the fourth of the five functions the authors identify. Arguably, though, it is redundant even in this function, the duty being conveyed by a combination of the supremacy clause and the presidential oath. In any event, it seems to me that the clause's role in the constitutional structure has been massively overplayed. After all, it appears in Article II, Section 3 (not section 2), after the President's obligation to give Congress information on the state of the union, and just before the obligation to commission officers.

This article argues for a comprehensive framework for the source and allocation of the foreign affairs powers of the U.S. government, based on the text of the Constitution. Modern scholarship, we believe, has too quickly given up on the Constitution's text as a tool for resolving foreign affairs controversies. This scholarship would have one believe that the Constitution contains enormous gaps and omissions in foreign affairs that must be filled by extratextual sources. In particular, the text is seen as largely unhelpful in addressing three seemingly intractable puzzles: (i) what is the source of foreign affairs powers conventionally believed to lie with the President - to direct and recall diplomats and act as the "sole organ" of communications with foreign nations - but apparently beyond the President's explicit textual powers; (ii) what is the source of Congress' authority to regulate foreign affairs matters, such as the activities of U.S. citizens abroad, that do not seem encompassed by Congress' enumerated powers; and (iii) how should one assess the source and allocation of foreign affairs powers not specifically mentioned in the text and claimed by both the President and Congress, such as the power to set foreign policy, enter into executive agreements, and terminate treaties.

We argue that the constitutional text, properly interpreted, provides a sound guide for resolving these matters. We derive four basic principles from the textual treatment of foreign affairs. First, the President has a "residual" foreign affairs power from Article II, Section 1's grant of "the executive Power." The executive power, as described by political theorists consulted by the framers - such as Locke, Montesquieu and Blackstone - included foreign affairs power. By using a common phrase infused with that meaning, the Constitution establishes a presumption that the President has the foreign affairs powers traditionally part of the executive power. Second, the framers thought the traditional executive had too great a power over foreign affairs, so they specifically allocated many key powers, in whole or in part, to other branches: war, commerce, treatymaking, etc. These are allocations away from the President, and thus, despite having the "executive Power," the President cannot claim independent authority in these areas: the executive power over foreign affairs is only residual, extending to matters not otherwise covered in the text. Third, Congress has no general power over foreign affairs, but it has two textual sources of foreign affairs power: powers specifically given to it (such as war and commerce), and its power to carry into execution powers granted to other branches by the Constitution. The latter is a derivative power exercisable in conjunction with the President, to give effect to the President's executive power over foreign affairs. Finally, the President has broad residual power over foreign affairs, but that power does not extend to matters not part of the traditional executive power. Accordingly, the President cannot claim lawmaking or appropriations power in foreign affairs.

Having described these textual principles, we test our reading against the actual practice of the Washington administration. We find that this practice corresponded closely with the model we have derived from the text. President Washington exercised broad powers in foreign affairs without specific textual authorization, and without raising any serious objections. Washington, however, also observed the limits on the executive power over foreign affairs we suggest: he did not claim powers specifically allocated to other branches, nor did he claim lawmaking or appropriations power in support of his foreign affairs powers.

Fifteen years later this article still represents my basic foundation for approaching foreign affairs law from a textualist/originalist perspective. There are some details I would put differently and some things I'd add (some of which I added in revisiting the topic in The Constitution's Text in Foreign Affairs), but I think the core framework has held up well despite extensive criticism. (For our response to some of the criticism, see here: Foreign Affairs and the Jeffersonian Executive: A Defense).

10/29/2016

Richard Primus (University of Michigan Law School) has posted The Constitutional Constant (Cornell Law Review, Forthcoming) on SSRN. Here is the abstract:

According to a conventional view of the Constitution as a precommitment strategy, constitutional rules must remain fixed over time in order for the Constitution to do its work. In practice, however, constitutional rules regularly change over time, even without formal amendment. What is actually constant over time in the American constitutional system is not the content of constitutional law: it is the correspondence between the content of constitutional law and the American people’s (or at least the decision-making class’s) most powerful intuitions about issues of structure and ethos in American government. At any given time, constitutional law reflects those intuitions. That correspondence, which abides as the content of constitutional law changes, is what this short essay calls the constitutional constant. And because American values and American ideas about government change over time, the content of constitutional rules must change in order to preserve what is truly constant in the constitutional system: the correspondence between the content of constitutional law and the deepest values of the American people.

This is not an empirical paper--there is no attempt to show that thesis is true, but it Primus has articulated an important speculative hypothesis and crystallized it. Here is passage from the paper that illustrates Primus's approach:

Our collective self-conception—our ethos—changes over time, as do our ideas about what governmental structure would best serve us in light of our ethos and our circumstances. Controversies about structure and ethos are reflected in controversies about constitutional meaning. And when there is broad agreement within the decisionmaking class about an important matter of governmental structure or a salient aspect of the American ethos, that agreement is reflected in the content of constitutional law.

Let’s assume for a moment that the phrase “due process of law” is entirely procedural (although this is debatable), describing the process of indictment, a trial before a neutral judge, and resulting in a conviction.

Substantive due process means that these legal procedures have to have taken place before a person’s substantive rights to life, liberty, or property can legitimately be denied. A violation of substantive due process could be committed by the executive (such as imprisoning a defendant without completing these procedures), or by the legislature. When an act of the legislature purports to authorize the executive to take a person’s life, liberty, or property without going through this process in the courts, that is unconstitutional. It is also unconstitutional if the legislature directly takes a person’s liberty without first going through this procedure in court.

I'm fine with this so far, assuming that the last sentence refers to bills of attainder. But the post continues:

A person’s liberty is the right to do those acts which do not harm others. The statute prohibiting a person from leaving a jail cell takes a person’s liberty just as much as a guard who physically prevents the person from leaving. ...

In Meyer v. Nebraska (1923), the Nebraska legislature prohibited even private schools from teaching in any language but English. This took their liberty to teach in the language of their choice without first going through any process of indictment, trial, or conviction. Before any individual’s liberty—such as the act of teaching in the language of their choice—can be taken away, that individual must be convicted of a crime in a court of law. Any statute passed by the legislature that prohibits a person’s acts of liberty prior to the judicial process of being convicted of a crime violates the Fourteenth Amendment’s Due Process Clause. The government can control public schools, but not private education, which people have the liberty to teach each other and their children as they choose.

I doubt this is defensible as a matter of original meaning. Rather, it seems an assertion -- that due process as an original matter means people cannot be prohibited from doing things that do not harm others. In originalist terms, that is an empirical claim and it needs empirical support; it cannot be deduced from first principles. And I think it pretty doubtful as an empirical matter: (a) I doubt many founding era (or even 14th Amendment-era) commentators took this view; and (b) I expect there were lots of laws in the founding and 14th Amendment eras that restricted people's ability to do things that did not harm others. I could be wrong on these points (it's not my area of expertise), but the post does not do much to show the contrary.

The post cites Thomas Jefferson saying:

Rightful liberty is unobstructed action according to our will, within the limits drawn around us by the equal rights of others. I do not add “within the limits of the law”; because law is often but the tyrant’s will, and always so when it violates the right of an individual.

But Jefferson was an outlier in multiple respects; I would want to see a lot more on both points (a) and (b) above to accept this as a strong originalist argument.

(As an aside, I agree that Meyer probably reached the right result, but it would have been better based on the First Amendment. Also, I agree that some things a legislature does might not qualify as due process of law -- for example, when the legislature acts outside its jurisdiction. But as a general matter, the due process clause seems better understood as directed principally at the executive and the judiciary.)

Thanks to Mark Pulliam for the pointer (and he has some sharp objections in the very interesting comments section at LIberty Law Blog).

10/27/2016

On Monday, October 17, the Harvard Federalist Society chapter hosted me [i.e., Professor Blackman] for a debate on whether the Senate has a duty to vote on Judge Garland’s nomination. Or at least it was supposed to be a debate. Despite the fact that many professors on the Harvard faculty are on record stating that the Senate has such a duty, the Chapter was unable to find a single person willing to debate me. The chapter also checked at other law schools, and no professor was willing to debate this topic.

Alas, I had to debate myself–or shadow-boxing as I called it. For the first few minutes of the event, I recounted the views of hundreds of law professors and others that the Senate has a duty to vote on Judge Garland’s confirmation. [ . . . ] Then, for the remainder of my time, I explained why no duty can be found in text, history, or practice. This is purely a political question.

Justice Samuel Alito is regarded by both his champions and his critics as the most consistently conservative member of the current Supreme Court. Both groups seem to agree that he has become the most important conservative voice on the Court. Chief Justice John Roberts has a Court to lead; Justice Antonin Scalia and his particular brand of originalism have passed on; Justice Clarence Thomas is a stricter originalist and so writes opinions that other Justices do not join; and Justice Anthony Kennedy can be ideologically unreliable. Justice Alito, by contrast, is unburdened by the perceived responsibilities of being Chief Justice, is relatively young by Supreme Court standards (66 years old), is methodologically conventional, and is uniquely reliable. As a consequence, many conservatives love to celebrate him as the ideal Justice, and many liberals love to condemn him as politically driven.

However one feels about Justice Alito as a jurist, he is carving out a distinctive role for himself on the Court at a pivotal time.That role and this time should be of interest to people who care about the Court's work regardless of their ideology. Particularly in light of Justice Scalia's passing, Justice Alito has become the primary judicial voice of the many millions of Americans who appear to be losing the culture wars, including in battles over gay rights, women's access to reproductive healthcare, affirmative action, and religious exemptions.

Part I observes that Justice Alito relies upon a variety of “modalities” of constitutional interpretation; his conventional methodology distinguishes him only (albeit interestingly) from justices Scalia and Thomas. Looking elsewhere for what distinguishes Justice Alito from the rest of his colleagues, Part II observes that his tenth year on the Court coincides with a potentially significant moment in American constitutional history. Connecting the moment to the man, Part III examines Justice Alito’s distinctive role, which is most apparent in his majority opinion in Burwell v. Hobby Lobby Stores, Inc. and his dissent in Obergefell v. Hodges. There and elsewhere, Justice Alito voices the concerns of Americans who hold traditionalist conservative beliefs about speech, religion, guns, crime, race, gender, sexuality, and the family. These Americans were previously majorities in the real or imagined past, but they increasingly find themselves in the minority. Part IV considers two alternative characterizations of Justice Alito — one from conservatives (who may view Justice Alito as a Burkean conservative), and the other from liberals (who may view him as a movement conservative). The Conclusion suggests that Justice Alito’s distinctive role will likely be amplified in the years ahead, and identifies questions that follow for his supporters and critics.

My view is that Justice Alito is strongly influenced by originalism (I have called him "originalist-oriented") and not so distinct in approach from Justice Scalia (although of course they sometimes prominently disagreed, especially in areas where Scalia seemed more libertarian, and their tone is quite different). It's true that Alito often reasons from precedent (especially precedent he likes); but that was also true of Scalia (thus leading critics to claim be was unfaithful to originalism, when in fact he just combined the two "modalities" [if we must use that word]).

10/25/2016

The National Constitution Center's Interactive Constitution project continues to generate interesting clause-specific commentary on the Constitution, often with some originalist orientation. The innovative format, as I've discussed before, is that the Federalist Society and the American Constitution Society each nominate an expert on a particular clause; the experts produce one joint essay noting areas in which they agree, and then separately each write an essay on areas in which they do not agree. (Here are my contributions on the declare war and commander-in-chief clauses with University of Texas law professor Stephen Vladeck, in which we don't manage to disagree on much).

One of the most interesting recent developments in our understanding of Article I, Section 7 concerns its third Clause, known as the Presentment of Resolutions Clause, or the Order, Resolution, and Vote (ORV) Clause. Subject to a major revelation in the early twenty-first century, its story illustrates originalist legal scholarship in action. (Originalism is an approach to the Constitution that seeks to interpret it according to its original public meaning.) Though the ORV Clause was widely understood for more than 200 years to be a failsafe against Congress disguising a bill as a “resolution” and thus circumventing the Presidential presentment requirement, Seth Barrett Tillman’s work revealed that the Framers’ intent was quite likely otherwise.

The popular interpretation of the ORV Clause comes from James Madison’s account of the 1787 Constitutional Convention. Madison proposed that Clause 2, the Presentment Clause, be amended to include the phrase “or resolve” after “bill,” achieving the same effect as that popularly attributed to the ORV Clause. Though Madison’s proposal was rejected, Virginia delegate Edmund Randolph successfully proposed the ORV Clause the following day. According to Madison, the ORV Clause was simply a “new form” of his failed amendment. As practically the only surviving commentary, Madison’s oddly simplistic account of the ORV Clause was accepted uncritically by the Supreme Court and legal scholars.

What Tillman uncovered was that Madison’s interpretation of the ORV Clause is actually inconsistent with the constitutional text. Tillman’s 2005 research suggests that the ORV Clause is not merely an anti-circumvention device, but also subjects to presentment certain legislative actions not addressed in the Presentment Clause. These actions include a range of single-House actions authorized by prior, bicameral legislation. That Congress may legislatively authorize a single House to act alone contradicts more than two centuries of legal scholarship and Supreme Court decisions—most notably, INS v. Chadha (1983). In Chadha, the Court struck down the “legislative veto” by the House of Representatives for failing to comply with the principle of bicameralism. ...

In my previous post, I talked about how delegation came to dominate our government. I focused on two types of delegation – delegation of policymaking discretion and delegation of legal interpretation, such as Chevron deference.

I suggested that Chevron was a disaster, because it greatly added to the delegations that had already occurred though congressional statutes. The courts could have simply enforced those congressional delegations without adding to them with Chevron. But instead they invented Chevron – which had not been enacted by Congress – and greatly expanded the delegations.

Chevron was also a disaster in another way. One might believe that Republicans are generally more in favor of limited government than Democrats these days, especially as to government regulation. This is not an uncontroversial judgment, but I believe it is largely correct. And if that is so, then the Republican judges of the 1980s undermined their cause when they pushed Chevron. Chevron allowed administrative agencies significantly more authority to enact regulations.

Prior to Chevron, the courts basically employed one of two tests for agency deference. Some of the time they granted deference as to mixed questions of law and fact, but denied deference as to pure questions of law. At other times, they employed a multi-factored balancing test as to whether the agency should get deference, which was exceedingly unpredictable. Chevron represented a big transfer of authority to agencies as compared to either of these tests.

So why did the Republican judges of the 1980s invent Chevron? In my view, there were two main reasons. First, there was the concern that the multi-factored balancing test was not clear and allowed judicial manipulation. True enough, although the modern evolution of Chevron has allowed such manipulation as well. But the Republican judges could have simply, with more precedential support, followed the first test granting deference as to mixed questions, but not as to pure questions. That would have yielded a test with pretty clear results.

This leads to the second reason – the Republican judges believed that liberal judicial activism was a greater danger than abuse by administrative agencies (agencies which tended to be controlled by Republicans during this period). The problem with the second reason is that it commits a serious fallacy in the separation of powers: the fallacy of assuming that the present arrangement (of which political party controls the different branches) will continue into the future. These arrangements can last for a considerable period, but over time they change.

The arrangement that prompted Chevron soon changed. The Democrats came to control the agencies and the Republicans assumed control of the judiciary. Since the different branches can be controlled by either party, the best way to determine which powers makes sense for a branch to hold is ask the question from a long run perspective without considering which party happens to control that branch at the moment.

Under this way of deciding the matter, there is a strong argument against Chevron deference. Chevron might be viewed as the delegation to the agency of either legislative power or judicial power. Either way, it is problematic. The basic issue is that an agency that can exercise both executive and judicial power or both executive and legislative power is problematic. By departing from the separation of powers (especially without a legislative warrant for doing so), Chevron gives the executive tremendous power to engage in largely unchecked actions.

It is true that the Republicans were concerned about a real issue as well – liberal judicial activism. But it would have been better to address that directly – by changing the statute or gradually appointing new judges. Over time, the judges would have changed, as they did. Under Chevron, however, the put in place a rule of deference that would allow the abuse of executive power for a long period.

A while back it was reported that the U.S. Navy had fired on radar installations of the Houthi rebels in Yemen, after the Houthis fired missiles at U.S. navy ships. The constitutional implications of this affair have (as far as I know) not been much discussed.

Obviously there is no congressional authorization for military action against the Houthis (they have not even a tenuous relationship with al Qaeda or Iraq). So the authority must come from the President's independent constitutional powers. Conventional wisdom no doubt says that since the Houthis attacked U.S. navy ships, the President could direct those ships to respond. I agree, but the issues may not be as simple as they appear.

Some people have a very narrow view of the President's power to respond to attacks, basically derived from Madison's comment at the constitutional convention that vesting Congress with the power to declare war would leave the President with the power to "repel sudden attacks." Thus, it is said, the President has the power to direct the armed forces to react defensively when attacked.

Is that what happened with the Houthis? Maybe. But it seems that the navy first defended itself against incoming missiles and then (after some lapse of time) fired on the radar installations (as the press account says) "retaliating" for the attacks (or perhaps more charitably, to prevent further attacks). If the President's independent power is only to "repel" attacks, perhaps this went further. And if the President has power to "retaliat[e]" for attacks, or to use preemptive force to prevent prospective attacks, then the President's power is a bit more than purely defensive, and one might fairly ask why it does not go quite a bit further than that.

My view is that the President's power does go quite a bit further. But that claim in turn raises this question: is the President now empowered to use the full force of the U.S. military to defeat the Houthis, assuming he would want to do that? I think the answer to that question is "no."

In general, I think that an attack on the United States or U.S. forces gives the President full power to counterattack. Adopting Hamilton's view, that is because the foreign power has declared war on the United States. Once war is declared, the President has constitutional power to fight it. Congress' declare war power is not implicated, because war already exists due to the acts (or statements) of the other side.

In this case, however, it is not clear that the Houthi forces as a whole intended to initiate war with the United States. The press account says:

The Houthis, who are battling the internationally-recognized government of Yemen President Abd Rabbu Mansour al-Hadi, denied any involvement in Sunday's attempt to strike the USS Mason. On Thursday, the Houthis reiterated a denial that they carried out the strikes and said they did not come from areas under their control, a news agency controlled by the group reported a military source as saying.

Thus it appears that the missile attack does not constitute a declaration of war by the Houthis. Perhaps it was a rogue operation, or at least something unauthorized by the Houthi central command (if there is such a thing), or even an attack by some other group. In that case, it would not seem to create the condition of open warfare between the U.S. and the Houthis. The U.S. strikes against the actual forces that carried out the initial attack would still be within the President's power, but widening the conflict to include the Houthi movement as a whole would not be the President's prerogative, without approval of Congress.

One broader point: it is often argued (by presidential advocates) that historical practice shows that the Preisdent has often used military force without Congress' approval. That historical record, presidential advocates continue, shows that the President does not need Congress' approval to use military force. The Houthi incident illustrates the sleight of hand involved in such claims. I would not dispute (and I think few people would dispute) the President's power to order the strikes on the Houthi positions. But that says nothing about a supposed broader power of the President to use military force when he thinks it appropriate. The President's authority to use force against the Houthis in this situation is based on (and limited to) the particular narrow circumstances of this situation. The fact that the President has independent power to use force without congressional authorization in some circumstances does not support the President's power to use force in other situations.(For more on this objection, see here).